Opinion
1:20-cv-07474-LJL-GRJ
01-25-2022
WILEISA ANNETTE S., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, United States Magistrate Judge
In January of 2017, Plaintiff Wileisa Annette S.applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by Howard David Olinsky, Esq., commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a Report and Recommendation on December 29, 2021. Presently pending are the parties' motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket Nos. 16, 22). For the following 1 reasons, it is recommended that Plaintiff's motion be denied, the Commissioner's motion granted, and this case dismissed.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on January 25, 2017, alleging disability beginning January 15, 2017. (T at 183-88).Plaintiff's application was denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on November 28, 2018, before ALJ Brian Battles. Plaintiff appeared with an attorney and testified. (T at 39-70). The ALJ also received testimony from Valerie Allen, a vocational expert. (T at 73-92).
Citations to “T” refer to the administrative record transcript at Docket No. 15.
B. ALJ's Decision
On March 20, 2019, the ALJ issued a decision denying the application for benefits. (T at 7-26). The ALJ found that Plaintiff had not engaged in substantial gainful activity since January 15, 2017 (the alleged onset date) and meets the insured status requirements of the Social Security Act through December 31, 2022 (the date last insured). (T at 1213). The ALJ concluded that Plaintiff's morbid obesity; Raynaud's phenomenon; fibromyalgia; systemic lupus erythematosus; diabetes 2 mellitus with neuropathy; congestive heart failure with hypertension; cervical degenerative disc disease with radiculopathy; and lumbar degenerative disc disease with radiculopathy were severe impairments as defined under the Act. (T at 13).
The ALJ further found that Plaintiff did not have an impairment or combination of impairments that met or medically equals one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 13).
The ALJ then determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work, as defined in 20 CFR 404.1567 (b) and 416.967 (b), with the following limitations: she can only occasionally balance, stoop, kneel, crouch, and crawl; occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; frequently handle, finger, and reach with the bilateral upper extremities; never work in an area with concentrated exposure to heat, cold, humidity, wetness, or excessive vibration; and could never work in hazardous environments (e.g., unprotected heights or moving mechanical parts). (T at 14-15). The ALJ further found that Plaintiff would need to be in a job that, in addition to normal breaks, allowed her to stand for 5 minutes after sitting for 30 minutes while remaining at her workstation. (T at 15). 3
The ALJ concluded that Plaintiff could not perform her past relevant work as a special police officer. (T at 19). However, considering Plaintiff's age (47 on the alleged onset date), education (at least high school, able to communicate in English), work experience, and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 20-21). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between January 25, 2017 (the alleged onset date) and March 20, 2019 (the date of the ALJ's decision). (T at 22).
On July 10, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-4).
C. Procedural History
Plaintiff commenced this action, through counsel, by filing a Complaint on September 11, 2020. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on July 20, 2021. (Docket No. 16, 17). The Commissioner filed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on November 1, 2021. (Docket No. 22, 23). On November 22, 2021, Plaintiff 4 submitted a reply memorandum of law in further support of her motion and in opposition to the cross-motion. (Docket No. 24). The matter was assigned to the undersigned for a Report and Recommendation on December 29, 2021.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). 5
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ....” 42 U.S.C. § 423(d)(1)(A).
A claimant's eligibility for disability benefits is evaluated under a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.6
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2). 7
III. DISCUSSION
Plaintiff raises one (1) main argument in support of her challenge to the ALJ's decision. She contends that the ALJ failed adequately to address the medical opinion evidence. In particular, Plaintiff argues that the ALJ improperly discounted opinions provided by two of her treating physicians.
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
A “treating physician” is the claimant's “own physician, psychologist, or other acceptable medical source who provides [the claimant] ... with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502.
Treating physician opinions are considered particularly probative because they “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2). 8
An opinion from a treating physician is afforded controlling weight as to the nature and severity of an impairment, provided the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2).
To determine how much weight a treating physician's opinion should be given, the ALJ considers the “Burgess factors” identified by the Second Circuit: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019)(following Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).
The Burgess factors are also applied to the opinions of non-treating physicians, “with the consideration of whether the source examined the claimant or not replacing the consideration of the treatment relationship between the source and the claimant.” McGinley v. Berryhill, No. 17 Civ. 2182, 2018 WL 4212037, at *12 (S.D.N.Y. July 30, 2018). A consultative physician's opinion may constitute substantial evidence. See Petrie v. Astrue, 412 F. Appx 401, 406 (2d Cir. 2011). 9
When the record contains competing medical opinions, it is the role of the Commissioner, and not this Court, to resolve such conflicts. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”). The ALJ may reach a determination that “does not perfectly correspond with any of the opinions of medical sources,” provided the ALJ's overall assessment is supported by substantial evidence and consistent with applicable law. See Trepanier v. Comm'r of SSA, 752 Fed.Appx. 75, 79 (2d Cir. 2018).
However, “‘the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion . . . . While an [ALJ] is free to ... choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who [submitted an opinion to or] testified before him.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)(quoting McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983))(alterations in original).
In the present case, two (2) treating physicians provided assessments of Plaintiff's limitations. In October of 2018, Dr. Larisa Mashensky completed a functional capacity assessment. Dr. Mashensky, who treated Plaintiff monthly for nearly two years, diagnosed lumbar herniated disc, lumbar radiculopathy, lumbar myofascial pain, lupus, 10 arthritis, and fibromyalgia. (T at 723). She opined that Plaintiff's symptoms were severe enough to interfere with attention and concentration constantly. (T at 725).
Dr. Mashensky stated that Plaintiff was incapable of even “low stress” jobs, would need to take unscheduled breaks constantly throughout an 8-hour workday, and would also often need to rest or lie down at unpredictable intervals during an 8-hour workday. (T at 726-27). She reported that Plaintiff could not sit, stand, or walk for more than 30 minutes continuously and/or for more than an hour total during an 8-hour workday. (T at 726). She explained that Plaintiff could occasionally lift/carry less than 5 pounds, but never more than that. (T at 727). Dr. Mashensky also assessed significant limitations in Plaintiff's ability to perform repetitive reaching, handling, fingering, or movement of her neck. (T at 727).
In October of 2018, Dr. Kishan Patel completed a functional capacity assessment based on a monthly treatment history spanning approximately a year and a half. (T at 731). Dr. Patel diagnosed lumbar herniated disc, lumbar radiculopathy, and lumbar myofascial pain. (T at 731). He described Plaintiff as experiencing sharp, constant pain in the lumbar and cervical spine, aggravated by walking, bending, and prolonged sitting. (T at 731-32). Dr. Patel stated that Plaintiff's symptoms constantly interfered 11 with attention and concentration. (T at 733). He opined that Plaintiff's constant pain would increase in a work environment, rendering her incapable of even "low stress” jobs. (T at 734). Dr. Patel reported that Plaintiff could not sit, stand, and/or walk for even an hour during an 8-hour workday and would need to take unscheduled breaks “very often.” (T at 734). He opined that she could occasionally lift/carry up to 5 pounds, but never more than that. (T at 735). Dr. Patel assessed significant limitations regarding Plaintiff's ability to move her neck and with respect to her ability to bend or twist her body at the waist. (T at 735-36).
The ALJ afforded “little weight” to the opinions of Dr. Mashensky and Dr. Patel. (T at 18-19). This Court finds the ALJ's decision supported by substantial evidence and consistent with applicable law.
Treating physician opinions are not ipso facto dispositive. For example, a treating physician opinion will not be afforded controlling weight if it is “not consistent with other substantial evidence in the record, such as the opinions of other medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see also Snell v. Apfel, 177 F.3d 128,133 (2d Cir. 1999) (“[T]he less consistent [the treating physician's] opinion is with the record as a whole, the less weight it will be given.”). 12
Here, Dr. Ram Ravi performed a consultative examination in April of 2017. According to Dr. Ravi, Plaintiff's gait was moderately antalgic, and, on clinical examination, she demonstrated no sensory deficit, full strength in her upper and lower extremities, and no muscle atrophy. (T at 607-609). Plaintiff also displayed intact hand and finger dexterity, with full grip strength bilaterally. (T at 609). Dr. Ravi diagnosed vertigo, hypertension, diabetes, diabetic neuropathy, congestive heart failure, asthma, peripheral vascular disease, fibromyalgia, lupus, back pain, neck pain, and bilateral hand/wrist pain. (T at 609).
Dr. Ravi opined that Plaintiff had no limitations with respect to sitting or standing and mild limitations as to walking, bending, pushing, pulling, lifting, carrying, and overhead activities. (T at 609). He advised that Plaintiff should avoid squatting, driving, operating machinery, heights, and uneven surfaces. (T at 609). He further reported that she should avoid activities requiring mild or greater exertion due to her cardiac condition and should avoid respiratory irritants because of her asthma. (T at 609).
The ALJ balanced the conflicting medical opinion evidence, giving “some weight” to Dr. Ravi's opinion and “little weight” to the assessments of Dr. Mashensky and Dr. Patel. (T at 18-19). The ALJ's decision to give relatively greater weight to the opinion of Dr. Ravi was within his discretion 13 to resolve the conflicting medical opinions, as he reasonably concluded that the consultative examiner's opinion was well-supported by a detailed clinical examination and more consistent with the overall treatment record. Further, the ALJ reasonably reconciled the record by finding Plaintiff somewhat more limited than Dr. Ravi believed, but not completely debilitated as the treating providers reported. (T at 16-19).
During clinical examinations, Plaintiff consistently demonstrated full muscle strength and full grip strength, normal range of motion, and no evidence of muscle atrophy or sensory deficits. (T at 350, 362, 372, 398, 466, 470, 472, 608-609, 816, 818, 820). She was advised by treating providers to improve her diet and exercise, which would be coupled with medication management to manage her symptoms. (T at 362-63, 366, 368, 375, 399). Dr. Steve Meed, Plaintiff's treating rheumatologist, encouraged weight loss and evaluation for bariatric surgery, and described Plaintiff's symptoms as “stable and mild ....” (T at 468, 471).
A May 2017 MRI of the cervical spine revealed posterior subligamentous disc bulging at ¶ 4/5, C5/6, and C6/7, with no central canal or foraminal stenosis or abnormal cord signal intensity. (T at 637). An August 2017 imaging study of Plaintiff's lower extremities did not reveal any evidence of venous insufficiency. (T at 827-28). An echocardiography and 14 doppler study was performed in March of 2018 to evaluate Plaintiff's lupus symptoms. The study found mildly decreased functioning in the left ventricle, but no evidence of acute abnormalities. (T at 831-32).
Plaintiff's activities of daily living, while limited, included some activities that could reasonably be considered inconsistent with the debilitating limitations assessed by the treating physicians, including the ability to drive, stand for 15 minutes without pain, attend to personal hygiene, clean weekly, and shop bi-weekly. (T at 15-16, 607).
As discussed above, Dr. Ravi performed a detailed clinical examination, including an interview with Plaintiff and review of her symptoms and treatment history, and concluded that she had some limitations (including limitations related to fibromyalgia and lupus), but could nevertheless sit and stand without limitation and walk, bend, push, pull, lift, and carry with only mild limitation. (T at 605-610).
In light of the foregoing, this Court concludes the ALJ acted within his discretion in finding the less restrictive assessment of Dr. Ravi more consistent with the record than the extremely restrictive opinions provided by Dr. Mashensky and Dr. Patel. The ALJ reasonably reconciled the conflicting evidence and found Plaintiff more limited than Dr. Ravi assessed, but not completely debilitated, as the treating physicians opined. 15
It is the role of the Commissioner, not this Court, to resolve evidentiary conflicts. See Veino, 312 F.3d at588 (2d Cir.2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). The ALJ resolved the conflict here by discounting the treating physicians' opinions as inconsistent with the treatment record and other medical opinion evidence. This was sufficient under the deferential standard of review. See Rusin v. Berryhill, 726 Fed.Appx. 837, 839 (2d Cir. 2018)(“The ALJ did not err in declining to afford [treating physician's] opinion controlling weight because his opinion is inconsistent with his treatment notes and diagnostic observations, the other medical opinion evidence, and [claimant's] reported activities of daily living.”); Brush v. Berryhill, 294 F.Supp.3d 241, 258 (S.D.N.Y. 2018)(finding ALJ's decision to discount treating physician's opinion supported by substantial evidence where opinion was contradicted by clinical observations of “5/5 strength in [the] shoulders ... and wrists, normal reflexes, intact sensation, and that [plaintiff] walked with a normal gait and station”); Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017)(“While [treating physician's medical source statement is supported by some evidence, the ALJ's decision to disregard his opinion is nevertheless substantially supported by the record.”); Tricarico v. Colvin, 681 Fed.Appx. 98, 100 (2d Cir. 2017)(affirming ALJ's decision to discount 16 treating physician's opinion based on “internal inconsistencies, such as the fact that the extreme limitations [the physician] identified were not consistent with the relatively conservative treatment plan he had prescribed, which consisted of only pain relief medication and physical therapy”).
This Court is mindful of the need for extra caution when evaluating symptoms related to lupus and fibromyalgia, which are notoriously difficult to treat and manifest variable symptoms over time. See, e.g., Thornton v. Colvin, No. 3:13-cv-1558 CSH, 2016 U.S. Dist. LEXIS 15504, at *26-33 (D. Conn. Feb. 9, 2016); Rodriguez v. Comm'r of Soc. Sec., 20 Civ. 2819 (AJN) (SLC), 2021 U.S. Dist. LEXIS 113975, at *31-34 (S.D.N.Y. June 16, 2021).
The ALJ, however, engaged in a careful analysis of the overall record, citing clinical observations, imaging studies, examination findings, and activities of daily living over an extended period of time (as opposed to “cherry-picking” isolated incidences) and reached a reasonable reconciliation of the competing opinions that is supported by substantial evidence. (T at 15-19). See, e.g., Argenti v. Saul, 18 Civ. 9345 (AT) (BCM), 2020 U.S. Dist. LEXIS 55517, at *8-9 (S.D.N.Y. Mar. 30, 2020)(“[T]he fact that the ALJ ‘ultimately found [P]laintiff ‘not disabled,' despite her 17 fibromyalgia, does not, of course, mean that he erred in evaluating her symptoms.'”)(citations omitted); Prince v. Astrue, 514 Fed.Appx. 18, 19 (2d Cir. 2013) (affirming denial of benefits while “several of [claimant's] conditions,” including fibromyalgia, “constituted severe impairments, she still retained the [RFC] to perform unskilled light work” and was, therefore, not disabled within the meaning of the Social Security Act); Bahaga v. Comm'r of Soc. Sec., 19 Civ. 05014 (KPF) (RWL), 2020 U.S. Dist. LEXIS 118095, at *15 (S.D.N.Y. July 2, 2020)(affirming ALJ's decision based on, inter alia, physical examinations showing lupus to be “stable and controlled”); Montas v. Comm'r of Soc. Sec., No. 18-CV-00169 (SN), 2019 U.S. Dist. LEXIS 55090, at *19-23 (S.D.N.Y. Mar. 29, 2019).
Fundamentally, Plaintiff argues that the ALJ should have weighed the evidence differently and given more credence to the extremely limiting opinions provided by the treating physicians. However, even if the record “may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citation and internal quotation marks omitted). In other words, “[i]f the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if 18 substantial evidence supporting the claimant's position also exists.” Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.”) (citation omitted). “The role of the reviewing court is ... quite limited and substantial deference is to be afforded the Commissioner's decision.” Johnson, 563 F.Supp.2d at 454.
In sum, the ALJ's decision to discount the treating physicians' opinion is supported by a reasonable reading of the record, including the treatment history, clinical examination findings, consultative examiner's assessment, and Plaintiff's activities of daily living. The decision, accordingly, should be affirmed under the deferential standard of review applicable here.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 16) should be DENIED; that the Commissioner's Motion for Judgment on the Pleadings (Docket No. 22) should be GRANTED; and this case should be dismissed. 19
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). 20